Ericson v Queensland Building and Construction Commission - [2016] QCA 140

SUPREME COURT OF QUEENSLAND

CITATION:

Ericson v Queensland Building and Construction Commission [2016] QCA 140

PARTIES:

IAN JAMES ERICSON
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)

FILE NO/S:

Appeal No 8105 of 2015
QCATA No 180 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

Orders delivered ex tempore 2 March 2016
Reasons delivered 3 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Delivered ex tempore on 2 March 2016:

1.   Leave to appeal is refused.

2.   The Court will give its reasons for that order later.

3.   The Applicant is to pay the Respondent’s costs of the application, to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent suspended and later cancelled the applicant’s building licence – where a single member of the Queensland Civil and Administrative Tribunal (QCAT) set aside that decision – where the Appeal Tribunal of QCAT reversed the decision to set aside and confirmed the respondent’s decision – where leave was granted to appeal the decision of the Appeal Tribunal to the Court of Appeal – where the Court of Appeal allowed the appeal on the basis that the Appeal Tribunal misapprehended the nature of its jurisdiction – where, on remitter, the Appeal Tribunal again set aside the original QCAT decision, and confirmed the respondent’s decision – where leave was granted to the Court of Appeal in respect of that decision – where this Court allowed the appeal, on the basis that the Appeal Tribunal failed to adequately deal with the issue of whether it was proceeding under s 146 or s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Court of Appeal remitted the matter to a differently constituted Appeal Tribunal for reconsideration – where the Appeal Tribunal thus constituted set aside the original QCAT decision and remitted the matter to the member for reconsideration – where the applicant contends that the Appeal Tribunal failed to properly take into consideration and apply the previous decisions of this Court – where the applicant also contends that the Appeal Tribunal failed to properly take into account s 48 of the Queensland Building Services Authority Act 1991 (Qld) – where the applicant submits that the Appeal Tribunal erred by taking into consideration evidence not available to the original decision maker

Queensland Building Services Authority Act 1991 (Qld), s 48
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147, s 150

Ericson v Queensland Building and Construction Commission[2014] QCA 297, considered
Ericson v Queensland Building Services Authority[2013] QCA 391, considered
Queensland Building and Construction Commission v Ericson t/a Flea’s Concreting [2015] QCATA 111

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ericson v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCA 140
Decision Date: 2 March 2016

CaseChat Overview and Summary

In the case of Ericson v Queensland Building and Construction Commission, the applicant, Ericson, appealed against the Queensland Building and Construction Commission's (QBCC) decision to suspend and subsequently cancel his building licence. This appeal journeyed through various tribunals and courts, culminating in the Supreme Court of Queensland. The core legal issues revolved around the interpretation and application of statutory provisions and the procedural correctness of the tribunals' decisions.

The legal issues at the heart of the case involved the interpretation and application of sections 146 and 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and the relevance of the Queensland Building Services Authority Act 1991 (Qld). Additionally, the applicant argued that the tribunals failed to properly consider previous decisions of the Court of Appeal and took into account evidence that was not available to the original decision maker. The applicant also claimed that the tribunals did not adequately address the nature of their jurisdiction in reviewing the original decision.

The court found that the Appeal Tribunal of the Queensland Civil and Administrative Tribunal (QCATA) had not adequately dealt with the jurisdictional issue of whether it was proceeding under s 146 or s 147 of the QCAT Act. Despite the Court of Appeal's earlier guidance on this matter, the tribunals had failed to clearly delineate their basis for proceeding. This oversight led to the Supreme Court allowing the appeal and remitting the matter to a differently constituted Appeal Tribunal for reconsideration. The tribunal, upon reconsideration, set aside the original QCAT decision and remitted the matter to the original member for reconsideration. However, the applicant argued that this tribunal also failed to properly apply the Court's previous decisions and took into account improper evidence.

ORDERS:
On 2 March 2016, the Supreme Court delivered its decision ex tempore. The Court refused leave to appeal and ordered that the applicant pay the respondent's costs of the application, to be assessed on the standard basis. The reasons for this order would be provided later.

Orders

Orders of the court

Delivered ex tempore on 2 March 2016:

1. Leave to appeal is refused.

2. The Court will give its reasons for that order later.

3. The Applicant is to pay the Respondent’s costs of the application, to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In November 2014 the Court of Appeal allowed an appeal from the second QCATA decision and remitted the matter to a differently constituted appeal tribunal.[9] The Court held that the Appeal Tribunal did not deal adequately with the issue of whether it was proceeding under s 146 or s 147. It was conceded by the respondent “that the Appeal Tribunal had erred in purporting to determine the matter under s 146 and in failing to make the basis upon which it proceeded under s 146 and s 147 clear.”[10][9]Ericson v Queensland Building and Construction Commission [2014] QCA 297.[10]Ibid at [22].The third QCATA decision and the grounds for leave In the third QCATA decision the Appeal Tribunal allowed the appeal of the QBCC, set aside the QCAT decision, and returned the matter to the original member for reconsideration. The applicant lists a number of matters which he submits amount to errors of law or which give rise to questions of law. The grounds advanced do not always identify the error except in the broadest of terms. For example, in paragraph 36 of his Amended Submissions he submits:“The presiding Members erred in Law by failing to properly take into consideration and apply the decision handed down by the Court of Appeal on 20th December 2013 Ericson v Queensland Building Services Authority [2013] QCA 391 returning the matter to it originally for reconsideration.”But he does not say how the Appeal Tribunal failed to apply that decision. A review of the grounds reveals that they may be grouped into five broad categories. First, there are grounds associated with the claim made by Hansen Yuncken and the characterisation of that claim. The characterisation of that claim in the QCAT decision was held (by this Court) to be correct. But the member had fallen into error by incorrectly applying the FRL policy. There was no error in the third QCATA decision on this point. That decision accepted the characterisation of the claim as found by the member and affirmed by this Court and then correctly applied the QBCC Act.[11][11]Queensland Building and Construction Commission v Ericson t/a Flea’s Concreting [2015] QCATA 111 at [33]-34]. Secondly, the applicant asserts that the Appeal Tribunal “... found that because the [applicant] had become a bankrupt the decision to cancel the licence was vindicated and referred the matter back to QCAT.”[12] That is not correct. The Appeal Tribunal said (in [71] of its reasons) that it had no power to receive evidence of the bankruptcy and, thus, could not make a direction to the member to have regard to it. It was, the Tribunal observed, for the member to decide when reconsidering the matter.[12]Applicant’s Amended Outline of Argument at [34]. Thirdly, the applicant asserts that the Appeal Tribunal did not apply either of the decisions of this Court.[13] Without particulars of the alleged failure it is difficult to identify what the error is said to be. It is, most likely, a reference to the use of either s 146 or s 147 of the QCAT Act which was the subject of attention in the two decisions of this Court. The Appeal Tribunal carefully and correctly applied s 146. No error has been shown.[13]Applicant’s Amended Outline of Argument at [36]-[37].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ericson v Queensland Building and Construction Commission [2016] QCA 140
PARTIES:	IAN JAMES ERICSON (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
FILE NO/S:	Appeal No 8105 of 2015 QCATA No 180 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	Orders delivered ex tempore 2 March 2016 Reasons delivered 3 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2016
JUDGES:	Margaret McMurdo P and Gotterson JA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Delivered ex tempore on 2 March 2016: 1. Leave to appeal is refused. 2. The Court will give its reasons for that order later. 3. The Applicant is to pay the Respondent’s costs of the application, to be assessed on the standard basis.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent suspended and later cancelled the applicant’s building licence – where a single member of the Queensland Civil and Administrative Tribunal (QCAT) set aside that decision – where the Appeal Tribunal of QCAT reversed the decision to set aside and confirmed the respondent’s decision – where leave was granted to appeal the decision of the Appeal Tribunal to the Court of Appeal – where the Court of Appeal allowed the appeal on the basis that the Appeal Tribunal misapprehended the nature of its jurisdiction – where, on remitter, the Appeal Tribunal again set aside the original QCAT decision, and confirmed the respondent’s decision – where leave was granted to the Court of Appeal in respect of that decision – where this Court allowed the appeal, on the basis that the Appeal Tribunal failed to adequately deal with the issue of whether it was proceeding under s 146 or s 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Court of Appeal remitted the matter to a differently constituted Appeal Tribunal for reconsideration – where the Appeal Tribunal thus constituted set aside the original QCAT decision and remitted the matter to the member for reconsideration – where the applicant contends that the Appeal Tribunal failed to properly take into consideration and apply the previous decisions of this Court – where the applicant also contends that the Appeal Tribunal failed to properly take into account s 48 of the Queensland Building Services Authority Act 1991 (Qld) – where the applicant submits that the Appeal Tribunal erred by taking into consideration evidence not available to the original decision maker Queensland Building Services Authority Act 1991 (Qld), s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147, s 150 Ericson v Queensland Building and Construction Commission[2014] QCA 297, considered Ericson v Queensland Building Services Authority[2013] QCA 391, considered Queensland Building and Construction Commission v Ericson t/a Flea’s Concreting [2015] QCATA 111